CD Bersabal v. Salvador

Bersabal v.
Salvador
Facts:
On March 23, 1972, petitioner Purita Bersabal seeks to annul
the orders of respondent Judge of August 4, 1971, October
30, 1971 and March 15, 1972 and to compel said respondent
Judge to decide petitioner's perfected appeal on the basis of
the evidence and records of the case submitted by the City
Court of Caloocan City plus the memorandum already
submitted by the petitioner and respondents.
It appears that private respondents Tan That and Ong Pin Tee
filed an ejectment suit, docketed as Civil Case No. 6926 in
the City Court of Caloocan City, against the petitioner.
During the pendency of the appeal the respondent court
issued on March 23, 1971 an order which reads:
o Pursuant to the provisions of Rep. Act No. 6031, the
Clerk of Court of Caloocan City, is hereby directed to
transmit to this Court within fifteen (15) days from
receipt hereof the transcripts of stenographic notes
taken down during the hearing of this case before the
City Court of Caloocan City, and likewise, counsels for
both parties are given thirty (30) days from receipt of
this order within which to file their respective
memoranda, and thereafter, this case shall be deemed
submitted for decision by this Court.
The transcript of stenographic notes not having yet been
forwarded to the respondent court, petitioner filed on May 5,
1971 a 'MOTION EX-PARTE TO SUBMIT MEMORANDUM
WITHIN 30 DAYS FROM RECEIPT OF NOTICE OF SUBMISSION
OF THE TRANSCRIPT OF STENOGRAPHIC NOTES TAKEN
DURING THE HEARING OF THE CASE BEFORE THE CITY
COURT OF CALOOCAN CITY' which was granted by
respondent court on May 7, 1971.
However, before the petitioner could receive any such notice
from the respondent court, the respondent Judge issued an
order on August 4, 1971 which says: For failure of the
defendant-appellant to prosecute her appeal the same is

hereby ordered DISMISSED with costs against her.
Petitioner filed a motion for reconsideration of the order on
September 28, 1971, citing as a ground the granting of his
ex-parte motion to submit memorandum within 30 days from
notice of the submission of the stenographic notes taken
before the City Court.
Private respondents filed their opposition to the motion on
September 30,1971. In the meantime, on October 20,1971,
petitioner filed her memorandum dated October 18, 1971.
On October 30, 1971 the respondent Court denied the
motion for reconsideration.
Then on January 25, 1972, petitioner filed a motion for leave
to file second motion for reconsideration which was likewise
denied by the respondent court on March 15, 1972.
Issue:
Whether the mere failure of an appellant to submit on time
the memorandum mentioned in the same paragraph would
empower the Court of First Instance to dismiss the appeal on
the ground of failure to Prosecute; or
whether it is mandatory upon said Court to proceed to
decide the appealed case on the basis of the evidence and
records transmitted to it, the failure of the appellant to
submit a memorandum on time notwithstanding.
Ruling:
2nd par., Sec. 45 of RA 296, Phil. Judiciary Act of 1987:
Courts of First Instance shall decide such appealed cases on
the basis of the evidence and records transmitted from the
city or municipal courts: Provided, That the parties may
submit memoranda and/or brief with oral argument if so
requested ... . (Emphasis supplied)
It cannot be interpreted otherwise than that the submission
of memoranda is optional on the part of the parties.
The Court is not empowered by law to dismiss the appeal on

the mere failure of an appellant to submit his memorandum,
but rather it is the Court's mandatory duty to decide the
case on the basis of the available evidence and records
transmitted to it.
As a general rule, the word "may" when used in a statute is
permissive only and operates to confer discretion; while the
word "shall" is imperative, operating to impose a duty which
may be enforced.
The implication is that the Court is left with no choice but to
decide the appealed case either on the basis of the evidence
and records transmitted to it, or on the basis of the latter
plus memoranda and/or brief with oral argument duly
submitted and/or made on request.
Moreover, memoranda, briefs and oral arguments are not
essential requirements.
Courts should heed the rule in Municipality of Tiwi, Albay vs.
Cirujales
,thus:
The appellate court's summary dismissal of the appeal even
before receipt of the records of the appealed case as ordered
by it in a prior mandamus case must be set aside as having
been issued precipitously and without an opportunity to
consider and appreciate unavoidable circumstances of
record not attributable to petitioners that caused the delay in
the elevation of the records of the case on appeal.
In the instant case, no notice was received by petitioner
about the submission of the transcript of the stenographic
notes, so that his 30-day period to submit his memorandum
would commence to run. Only after the expiration of such
period can the respondent Judge act on the case by deciding
it on the merits, not by dismissing the appeal of petitioner.
WHEREFORE, THE CHALLENGED ORDERS OF RESPONDENT
JUDGE DATED AUGUST 4, 1971, OCTOBER 30, 1971 AND
MARCH 15, 1971 ARE HEREBY SET ASIDE AS NULL AND VOID
AND THE RESPONDENT COURT IS HEREBY DIRECTED TO

DECIDE CIVIL CASE NO. C-2036 ON THE MERITS. NO COSTS.

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Bersabal v.

defendant-appellant to prosecute her appeal the same is

The Court is not empowered by law to dismiss the appeal on

AND THE RESPONDENT COURT IS HEREBY DIRECTED TO

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